Category Archives: Water Quality

Water Control Board Votes to Reconsider MVP Certification

At their regular meeting on December 12, 2018, The State Water Control Board voted 4-3 to initiate the formal hearing process to consider revoking the 401 Certification for the Mountain Valley Pipeline.  See Roanoke Times coverage here.

Please recall that when Northam removed the two members of the Air Control Board who had questioned the air permit for the Union Hill compressor station, he also removed two Water Control Board members who had questioned water permit certification for the pipelines. One of Northam’s new appointments to the Water Board, James Lofton, made the motion to reconsider the MVP certification in response to extensive public comment regarding ongoing MVP damage, and members Nissa Dean, Paula Jasinki (also new), and Robert Wayland joined him in voting to reconsider. Voting against reconsideration were Heather Wood, Lou Ann Wallace and Tim Hayes.

Although the MVP’s nationwide permit was revoked months ago, the Department of Environmental Quality took no action to shut down pipeline construction. Just a week ago, Attorney General Mark Herring filed suit against MVP for their repeated environmental violations – hundreds of violations.

Writing in an op-ed in a Virginia Mercury article published earlier in the day, Roberta Kellum, one of the Water Board members Northam removed, wrote of Herring’s suit that “After reading the complaint, there should be no doubt about the validity of the concerns raised by the public about water quality impacts from fracked gas pipeline construction projects and the associated water quality certifications issued by the State Water Control Board. What the complaint doesn’t tell us, however, is how the DEQ allowed so many violations to occur unabated, for months and months, or how major erosion and sediment control structures failed in spite of pre-approved plans.” She adds, “And why, in the face of so many systemic failures in complying with the water quality certification, didn’t DEQ issue a stop work order to ensure that violations were addressed to prevent any degradation of water quality? Having faced a justifiably irate and frustrated public repeatedly as a State Water Control Board member over the past two years, I hope Gov. Northam will finally appreciate the validity of public concerns for the waters of the commonwealth.”

Yes, indeed, it is certainly time for the State Water Control Board to reconsider their certification of the disastrous Mountain Valley Pipeline. Our thanks to the Board members who voted to do so.

FERC Asked to Issue Stop Work Order for ACP

On November 27, 2018, a group of six ABRA members – Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, and Wild Virginia – asked the Federal Regulatory Commission to issue a stop work order for the Atlantic Coast Pipeline (ACP). On November 9, the same organizations had requested a stop-work order. The new request, sent by Appalachian Mountain Advocates on behalf of the six organizations, supplements the November 9 request, noting that the project has recently lost permits from three U.S. Army Corps of Engineers districts (Norfolk, Wilmington and Huntington) to construct the ACP over streams under the Corps’ Nationwide 12 permit. FERC’s October 13, 2017 Certificate to the ACP requires all federal authorizations to be in place in order for construction to take place. The letter states:

As a result of the suspensions of those three authorizations, Atlantic no longer has the requisite federal approval to construct any stream or wetland crossing along its entire route. Atlantic also lacks NWP 12’s authorization for “temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through subsoil fissures or fractures that might occur during horizontal directional drilling [HDD] activities,” meaning that Atlantic lacks the ability to promptly and legally control the all-too-common inadvertent releases from HDD operations that might be performed in lieu of in-stream crossings. Because those mandatory federal authorizations are now lacking, FERC must not allow pipeline construction to continue, not only in waters of the United States but anywhere along the pipeline route.

Appeals Court Vacates MVP Nationwide Permit


On November 27, 2018, the US Fourth Circuit Court of Appeals ruled that the Army Corps of Engineers violated the Clean Water Act when it verified that construction of the Mountain Valley Pipeline project could proceed under Nationwide Permit 12 in West Virginia. The Court vacated the Corps’ verification in its entirety, leaving the project with no authorization under the Clean Water Act. The Court’s November 27, 2018, decision supports and expands upon their October 2, 2018, decision to vacate the Corps’ verification on more limited grounds.

A copy of the Court’s opinion is here.

A detailed explanation and interpretation from the Policy Resolution Group is here.

Coverage in the Charleston Gazette-Mail is here.

Army Corps of Engineers Suspends ACP Permit

Appalachian Mountain Advocates announcement, November 20, 2018:

Following requests from Appalachian Mountain Advocates (Appalmad) attorneys, the Norfolk, Huntington, and Pittsburgh districts of the Army Corps of Engineers have each suspended its authorization of the Atlantic Coast Pipeline. As a result, ACP lacks authorization to do any instream or wetland construction anywhere along its route.

Appalmad has argued this action was necessary in light of a recent federal court ruling that the Atlantic Coast Pipeline’s reliance on Nationwide Permit (NWP) 12 was improper. The NWP was issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act. It allowed contractors to trench through the bottom of streams and rivers. The Corps’ decision has had the effect of forcing the ACP to temporarily suspend water crossings along the entire project until it can obtain a satisfactory permit.

Appalachian Mountain Advocates represents the Sierra Cub, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices, and Chesapeake Climate Action Network in this action.

See the Richmond Times-Dispatch news story on the suspension.

4th Circuit Court Stays ACP Permit in WV

On Wednesday November 7, 2018, the 4th U.S. Circuit Court of Appeals ordered a temporary halt to the water-crossing permit allowing the Atlantic Coast Pipeline to build through streams and rivers in West Virginia. Although the Army Corps of Engineers had issued a “Nationwide Permit 12,” the West Virginia Department of Environmental Protection inserted two stipulations, requiring that stream crossings must be completed in 72 hours, and that structures authorized by the permit could not impede fish from swimming upstream or downstream. ACP then changed its construction method for crossing the Greenbrier River to a method environmental lawyers say violates the WV DEP conditions.

The Corps reinstated their permit in October, and last week Appalachian Mountain Advocates, on behalf of the Sierra Cub, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices, and Chesapeake Climate Action Network, asked the 4th Circuit Court for a stay to pause the construction. The Court issued the two-page order from Chief Judge Roger Gregory, with the concurrence of Judge James Wynn and Judge Stephanie Thacker.

Read the Court’s order here.

Charleston Gazette-Mail press coverage is here.

MVP Loses Key Water Crossing Permit

On October 19, 2018, the Pittsburgh District of the Army Corps of Engineers suspended a third permit that the Mountain Valley Pipeline (MVP) must have to build through waterways in Wetzel and Harrison Counties in West Virginia.

This is the third invalidation or suspension of MVP’s water crossing permits. On October 2, a federal appeals court vacated a similar permit for the rest of the West Virginia route, and the approval covering the more than 500 crossings on the Virginia portion of the route has also been suspended. Although MVP now has no authority to build through any waterbodies, streams, or wetlands on its entire 303 mile route, intensive construction continues in places between streams.

Opponents are calling on FERC to issue a stop work order, since FERC’s order approving the project requires that all permits be in place for construction to take place anywhere along its 303-mile route, and the necessary permits are clearly no longer in place.

Read the Roanoke Times report here.

Read the Appalachian Mountain Advocates release here.